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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40579

JOSE MANUEL SANCHEZ,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2013 Unpublished Opinion No. 600

Filed: July 29, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Sixth Judicial District, State of Idaho, 

Bannock County. Hon. David C. Nye, District Judge. 

Order summarily dismissing petition for post-conviction relief, affirmed. 

Jose Manuel Sanchez, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

MELANSON, Judge

Jose Manuel Sanchez appeals from the district court’s order summarily dismissing his 

petition for post-conviction relief. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

A jury found Sanchez guilty of 112 counts of aggravated battery. Sanchez appealed. In 

an unpublished opinion, this Court affirmed Sanchez’s judgment of conviction. State v. Sanchez, 

Docket No. 36474 (Ct. App. Mar. 25, 2011). Sanchez filed a petition for post-conviction relief 

and the district court denied Sanchez’s request for appointment of counsel. The state filed a 

motion for summary dismissal, and the district court entered an order summarily dismissing 

Sanchez’s petition. Sanchez appeals. 
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II.

ANALYSIS

A. Appointment of Counsel

Sanchez asserts the district court erred by denying his request for appointment of counsel. 

If a post-conviction petitioner is unable to pay for the expenses of representation, the trial court 

may appoint counsel to represent the petitioner in preparing the petition in the trial court and on 

appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed counsel lies 

within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 

1108, 1111 (2004). When a district court is presented with a request for appointed counsel, the 

court must address this request before ruling on the substantive issues in the case. Id.; Fox v. 

State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court abuses its 

discretion where it fails to determine whether a petitioner for post-conviction relief is entitled to 

court-appointed counsel before denying the petition on the merits. See Charboneau, 140 Idaho 

at 793, 102 P.3d at 1112. 

In determining whether to appoint counsel pursuant to Section 19-4904, the district court 

should determine if the petitioner is able to afford counsel and whether the situation is one in 

which counsel should be appointed to assist the petitioner. Charboneau, 140 Idaho at 793, 102 

P.3d at 1112. In its analysis, the district court should consider that petitions filed by a pro se 

petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts 

sufficient to state a claim may not be alleged because they do not exist or because the pro se 

petitioner does not know the essential elements of a claim. Id. Some claims are so patently 

frivolous that they could not be developed into viable claims even with the assistance of counsel. 

Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a 

petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint 

counsel in order to give the petitioner an opportunity to work with counsel and properly allege 

the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112. 

Sanchez’s petition contained eighteen allegations, summarized as follows: appellate 

counsel failed to petition the Idaho Supreme Court to seek review of this Court’s decision 

affirming his judgment of conviction; the district court erred in allowing the victim to testify 

regarding allegations of abuse between 1993 and 2006; the district court erred in allowing bad 

acts testimony because it was highly prejudicial, unproven, remote in time, never charged, or 
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never disclosed to any third person; the district court erred in allowing the victim to testify only 

as to specific instances of battery on a specific few days and to then testify that similar abuse 

occurred daily for 112 days; the district court erred in allowing the prosecution to call expert 

witnesses to testify; the district court erred in not severing the 112 counts into separate trials; the 

district court erred in admitting evidence of self-torture by the victim; the district court erred in 

not questioning the victim’s credibility when she testified to self-inflicted abuse with a burning 

tool; the district court erred in being an expert to explain why someone would self-inflict 

wounds; the district court erred in allowing unbelievable and uncorroborated testimony of the 

victim as to threats made by Sanchez; the prosecutor inappropriately charged Sanchez with 112 

allegations of aggravated battery and the district court erred by allowing all 112 charges go to the 

jury when the victim could only specifically remember three instances of battery; the district 

court erred in allowing 112 allegations to go to the jury as part of a common scheme or plan; the 

district court erred in allowing evidence where credibility was at issue and the evidence was 

unrealistic; trial counsel failed to preserve a challenge to the district court’s decision allowing

evidence of removal of the victim’s teeth when the evidence had no probative value; trial counsel 

failed to preserve a challenge to testimony regarding abuse from 1992 through 2007; trial 

counsel failed to preserve a challenge to the prosecution’s psychiatric experts; trial counsel failed 

to preserve a challenge to admission of testimony by domestic violence experts that had no 

probative value; and the sentences are cruel and unusual punishment given Sanchez’s age and 

health.

In denying Sanchez’s request for appointment of counsel, the district court determined

that many of the issues Sanchez raised in his petition were either addressed or could have been 

raised in his direct appeal. The district court concluded no allegation in Sanchez’s petition raised 

the possibility of a valid claim. Indeed, this Court addressed several of Sanchez’s allegations in 

our unpublished opinion affirming Sanchez’s judgment of conviction. See Sanchez, Docket No. 

36474 (Ct. App. Mar. 25, 2011). These allegations could not be considered, as the principles of 

res judicata apply when a petitioner attempts to raise the same issues previously ruled upon on 

direct appeal in a subsequent petition for post-conviction relief. Knutsen v. State, 144 Idaho 433, 

439, 163 P.3d 222, 228 (Ct. App. 2007). Several of Sanchez’s other allegations could have been 

raised on direct appeal. The scope of post-conviction relief is limited. Rodgers v. State, 129 

Idaho 720, 725, 932 P.2d 348, 353 (1997). A petition for post-conviction relief is not a substitute 
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for an appeal. I.C. § 19-4901(b). A claim or issue which was or could have been raised on 

appeal may not be considered in post-conviction proceedings. Id.; Whitehawk v. State, 116 Idaho 

831, 832-33, 780 P.2d 153, 154-55 (Ct. App. 1989). 

With respect to Sanchez’s claims of ineffective assistance of counsel, such claims may 

properly be brought under the Post-Conviction Procedure Act. Murray v. State, 121 Idaho 918, 

924-25, 828 P.2d 1323, 1329-30 (Ct. App. 1992). To prevail on an ineffective assistance of 

counsel claim, the defendant must show that the attorney’s performance was deficient and that 

the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 

(1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a 

deficiency, the petitioner has the burden of showing that the attorney’s representation fell below 

an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 

1176 (1988). To establish prejudice, the petitioner must show a reasonable probability that, but 

for the attorney’s deficient performance, the outcome of the trial would have been different. Id.

at 761, 760 P.2d at 1177. This Court has long adhered to the proposition that tactical or strategic 

decisions of trial counsel will not be second-guessed on appeal unless those decisions are based 

on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective 

evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994). 

Three of Sanchez’s ineffective assistance of trial counsel claims are belied by the record. 

Specifically, in our unpublished opinion affirming Sanchez’s judgment of conviction, this Court 

addressed Sanchez’s claims regarding the district court’s decision to allow evidence of removal 

of the victim’s teeth, testimony regarding abuse from 1992 through 2007, and testimony by 

domestic violence experts. Therefore, these claims were preserved for appeal. With respect to 

the district court’s decision to allow testimony and reports from two psychiatric experts, as noted 

in our unpublished opinion, the issue of whether one of the expert’s testimony and report were 

relevant was not preserved for appeal. However, in footnote four of our opinion, this Court 

stated that, even if the issue had been properly preserved, we would have concluded Sanchez 

failed to demonstrate the evidence lacked relevance or was improperly admitted. Thus, Sanchez 

could not establish prejudice to support this ineffective assistance of counsel claim. 

Sanchez also asserted his appellate counsel failed to petition the Idaho Supreme Court for 

review of this Court’s decision affirming his judgment of conviction. However, review by the 

Idaho Supreme Court of a decision of this Court is not something to which a party is entitled as a 
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matter of right. Jakoski v. State, 136 Idaho 280, 286, 32 P.3d 672, 678 (Ct. App. 2001). Rather, 

granting a petition for review is discretionary with the Idaho Supreme Court. I.A.R. 118(b). The 

United States Supreme Court has held that there is no federal constitutional right to counsel in 

seeking discretionary review of an appellate decision. Ross v. Moffitt, 417 U.S. 600, 615 (1974). 

Where a defendant has no constitutional right to counsel in a discretionary appeal, he or she 

cannot be deprived of constitutionally mandated effective assistance of counsel by counsel’s 

failure to timely file an application for review. Jakoski, 136 Idaho at 286, 32 P.3d at 678. Thus,

none of Sanchez’s allegations regarding ineffective assistance of counsel raised the possibility of 

a valid claim. Accordingly, the district court did not abuse its discretion by denying Sanchez’s 

request for court-appointed counsel. 

B. Summary Dismissal

Sanchez contends the district court erred by summarily dismissing his petition for postconviction relief. A petition for post-conviction relief initiates a proceeding that is civil in 

nature. Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 

104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray, 121 Idaho at 921, 828 P.2d at 1326. 

Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the 

allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Goodwin 

v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction 

relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50, 56, 106 

P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the 

claim that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, a petition for postconviction relief must be verified with respect to facts within the personal knowledge of the 

petitioner, and affidavits, records or other evidence supporting its allegations must be attached or 

the petition must state why such supporting evidence is not included with the petition. I.C. § 19-

4903. In other words, the petition must present or be accompanied by admissible evidence 

supporting its allegations or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 

67, 266 P.3d 1169, 1172 (Ct. App. 2011). 

Idaho Code Section 19-4906 authorizes summary dismissal of a petition for postconviction relief, either pursuant to motion of a party or upon the court’s own initiative, if it 

appears from the pleadings, depositions, answers to interrogatories, and admissions and 

agreements of facts, together with any affidavits submitted, that there is no genuine issue of 
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material fact and the moving party is entitled to judgment as a matter of law. When considering 

summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but 

the court is not required to accept either the petitioner’s mere conclusory allegations, 

unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125 

Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 

P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained 

to draw inferences in favor of the party opposing the motion for summary disposition; rather, the 

district court is free to arrive at the most probable inferences to be drawn from uncontroverted 

evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such 

inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify 

them. Id. at 355, 195 P.3d at 714. 

Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven

by the record of the criminal proceedings, if the petitioner has not presented evidence making a 

prima facie case as to each essential element of the claims, or if the petitioner’s allegations do 

not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 

(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary 

dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a 

matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in 

the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be 

appropriate even when the state does not controvert the petitioner’s evidence. See Roman, 125 

Idaho at 647, 873 P.2d at 901.

Conversely, if the petition, affidavits and other evidence supporting the petition allege 

facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be 

summarily dismissed. Charboneau, 140 Idaho at 792, 102 P.3d at 1111; Sheahan v. State, 146 

Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of material fact is 

presented, an evidentiary hearing must be conducted to resolve the factual issues. Goodwin, 138 

Idaho at 272, 61 P.3d at 629. 

On appeal from an order of summary dismissal, we apply the same standards utilized by 

the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if 

true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 

929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free 
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review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33

P.3d 841, 844 (Ct. App. 2001). 

As determined above, the allegations in Sanchez’s petition were either addressed or could

have been raised in his direct appeal, are belied by the record, or failed to raise the possibility of 

a valid claim. Thus, the district court did not err by summarily dismissing Sanchez’s petition. 

C. Notice

Sanchez appears to assert the district court erroneously dismissed his petition on grounds 

different than those asserted by the state in its motion to dismiss. Where the state has filed a 

motion for summary disposition, but the court dismisses the petition on grounds different from 

those asserted in the state’s motion, it does so on its own initiative and the court must provide 

twenty days’ notice. Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995). If 

the district court dismisses on grounds not contained in the state’s motion, the petitioner has no 

opportunity to respond and attempt to establish a material issue of fact. See Baxter v. State, 149 

Idaho 859, 865, 243 P.3d 675, 681 (Ct. App. 2010). 

The Idaho Supreme Court has held that, when a district court summarily dismisses a postconviction petition relying in part on the same grounds presented by the state in its motion for 

summary dismissal, the notice requirement has been met. Kelly, 149 Idaho at 523, 236 P.3d at 

1283. Kelly argued the district court erred in dismissing his petition for post-conviction relief 

because the state’s motion for summary dismissal contained no notice of the grounds on which 

his claim was dismissed and the district court dismissed several of his claims on grounds entirely 

different than the grounds argued by the state. The state’s motion sought dismissal on the 

grounds that there was no evidentiary basis to support Kelly’s claims and the state supported its 

conclusion citing extensively from Idaho law. Id. at 522, 236 P.3d at 1282. The district court 

considered Kelly’s petition under several grounds not raised by the state, but it also dismissed 

Kelly’s claims on the ground that Kelly did not provide facts sufficient to support his claims. On 

appeal, the Idaho Supreme Court held that Kelly was afforded sufficient notice because, when a 

trial court summarily dismisses a petition for post-conviction relief based in part on the 

arguments presented by the state, the notice requirements of I.C. § 19-4906(b) are satisfied. 

Kelly, 149 Idaho at 523, 236 P.3d at 1283. 

Here, the state’s motion for summary dismissal asserted Sanchez’s ineffective assistance 

of counsel claims failed to raise a genuine issue of material fact and his other claims were bare or 
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conclusory, unsubstantiated by fact, procedurally defaulted, or clearly disproven by the record. 

In the district court’s decision on the motion, the district court identified that most of Sanchez’s 

claims were or could have been raised on direct appeal. The district court also recognized 

Sanchez’s ineffective assistance of trial counsel claims were disproven by the record. Therefore, 

Sanchez failed to raise any genuine issues of material fact as to those claims. Sanchez’s claim 

related to ineffective assistance of appellate counsel was the only claim for which the district 

court provided an additional ground for dismissal not contained in the state’s motion. 

Specifically, the district court first stated that Sanchez made no factual showing he ever

requested his counsel file a petition for review. The district court concluded Sanchez failed to 

provide sufficient facts for the issue to be decided in his favor. The district court also determined 

Sanchez’s claim additionally failed because review of a decision of this Court by the Idaho 

Supreme Court is not something to which a party is entitled as a matter of right and, therefore, a 

defendant cannot be deprived of effective assistance by counsel’s failure to timely file a petition

for review. While this additional reason was not a ground for dismissal identified in the state’s 

motion to dismiss, as explained above, when a district court summarily dismisses a petition 

based in part on arguments presented by the state, the notice requirements of I.C. § 19-4906(b) 

are satisfied. 

D. Judicial Bias

Sanchez finally appears to assert the district court was biased because it determined many 

of his post-conviction claims were procedurally barred. This Court will not consider judicial 

bias in the absence of a motion to disqualify the judge below. See Christensen v. Ransom, 123 

Idaho 99, 104, 844 P.2d 1349, 1354 (Ct. App. 1992). Because Sanchez did not file a motion to 

disqualify the district judge below, we need not consider his argument of judicial bias on appeal. 

Even considering the argument, there is no support in the record for Sanchez’s allegation of bias. 

III.

CONCLUSION

The allegations in Sanchez’s petition were either addressed or could have been raised in 

his direct appeal, were belied by the record, or failed to raise the possibility of a valid claim. 

Thus, the district court did not err by denying Sanchez’s request for appointment of counsel or

summarily dismissing Sanchez’s petition. The district court did not erroneously dismiss 

Sanchez’s petition on grounds different than those asserted by the state in its motion to dismiss. 
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There is no support in the record for Sanchez’s allegation of judicial bias. Therefore, the district 

court’s order summarily dismissing Sanchez’s petition for post-conviction relief is affirmed. No 

costs or attorney fees are awarded on appeal. 

Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.